Alabama capital murder cases rekindle debate over ‘judge override’

The 2008 murder of Auburn University freshman Lauren A. Burk horrified Lee County and the surrounding community. But last fall, 12 jurors recommended life in prison for Courtney Lockhart, the man convicted of abducting Burk and forcing her to disrobe before fatally shooting her.

The 2008 murder of Auburn University freshman Lauren A. Burk horrified Lee County and the surrounding community. But last fall, 12 jurors recommended life in prison for Courtney Lockhart, the man convicted of abducting Burk and forcing her to disrobe before fatally shooting her.

Despite the jury’s consensus, Circuit Court Judge Jacob A. Walker III overruled the recommendation and sentenced Lockhart to die by lethal injection. The judge attributed his decision to a series of robberies involving Lockhart, saying jurors likely would have been swayed toward capital punishment if they had considered those alleged crimes.

Walker now is tasked with a similar choice in another high-profile case in which jurors rejected a death sentence for Gregory Lance Henderson, the Columbus man convicted Tuesday of running over and killing a deputy sheriff. The Lee County cases have drawn attention to a controversial statute that allows Alabama’s elected judges to make life-or-death decisions entrusted to jurors in other states.

Walker’s decision in the Lockhart case this March drew criticism from death penalty opponents and advocates for eliminating the option of “judge override.”

“When a jury of your peers decides after saying you’re guilty of capital murder that you shouldn’t be sentenced to death, there’s a reason for that,” said Randy Susskind, an attorney with the Equal Justice Initiative, a Montgomery, Ala., nonprofit that opposes executions and represents indigent defenders. “Override is just too susceptible to abuse and arbitrariness.”

Alabama’s capital punishment statute is unique. Florida and Delaware also allow override in capital cases, but both states require a more stringent standard to justify intervention from the bench.

Florida’s law requires “the facts suggesting a sentence of death” to be “so clear and convincing that virtually no reasonable person could differ.” In Alabama, however, judges are only required to “consider” the advisory verdict.

An Equal Justice Initiative report published this year found evidence that judges override jury life recommendations more frequently in cases involving white victims than black victims, and that the proportion of death sentences due to override is often higher during election years.

Ninety-two percent of 107 overrides since 1976 converted life recommendations to death sentences, the report found. Three of those occurred in Russell County, including the high-profile case of Robert Lee Tarver Jr., the Pittsview, Ala., man convicted in 1985 of murdering 63-year-old Hugh Sims Kite. Jurors voted for life in prison in that case, but then-Judge Wayne T. Johnson overrode the recommendation and sent Tarver to death row.

Tarver was executed in 2000 after the courts rejected his claim that the electric chair was unconstitutionally cruel. (Alabama law now provides for the lethal injection, but still offers electrocution as an option to the condemned.) Critics contend that Alabama’s override law is flawed, and that judges apply it inconsistently. The Equal Justice Initiative report found judge override to be “the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country,” noting 21 percent of inmates on the state’s death row were put there despite a jury recommendation of life imprisonment.

Judges also may override death recommendations to life but have done so just nine times since 1976, the report found.

“No one person should be trusted or burdened with the decision of whether another human should die,” said James F. Barger Jr., a Birmingham attorney who opposes the death penalty and is defending a capital case in Russell County. “We developed the jury system a very long time ago to speak for the will of the people in such important matters.”

Others point to potential advantages of override, noting the option to go against a jury recommendation can cut both ways, in theory if not in practice.

“When there is a case of a miscarriage of justice either way, that judge would have the power to set things right,” said Bill Veitch, chief deputy district attorney in the Bessemer division of Jefferson County, Ala., who noted many judges are experienced and have seen their share of heinous crimes. “The most favorable light to the override power is the judge is in a position not to be so moved by passion, prejudice or sympathy.”

Judge Albert Johnson of Russell County Circuit Court said he has not yet presided over a case that justified an override.

“I’ll never criticize a judge for either overriding or not overriding a jury’s decision because that judge is the judge that tried the case and knows the facts of the case,” he said.

Johnson said he is skeptical of reports such as the Equal Justice Initiative study that criticized jury override.

“I’ve taken several graduate statistics courses, and I can take raw data and make any point I want to make for any position I want to take,” he said. “So I don’t give a whole lot of credence to that.”

For defense attorneys, override adds an element to capital cases that can be impossible to predict. In the Lockhart case, defense attorney Jeremy W. Armstrong said he was surprised on at least two occasions.

The first twist, he said, was the unanimous recommendation of life without parole, which flew in the face of the county’s conservative reputation.

“I didn’t think we had a fair chance at all in Lee County with this type of case, but those Lee County jurors proved me wrong,” Armstrong said in an interview in his Phenix City office. “They really looked at this case thoroughly, and I was really shocked in terms of them returning a 12-0 life without parole verdict.”

But Armstrong said he was even more surprised -- and disappointed -- by Walker’s decision to override the recommendation. He noted several mitigating factors in Lockhart’s case, including his problems after returning from military service in Iraq.

“A lot of people disagreed with those jurors, but those people didn’t sit there day in and day out and listen to everything in that courtroom,” Armstrong said. “If the community does not have the final say-so in terms of what a punishment should be for a crime in their community -- and the judge can override -- what sense does it make for us to have a penalty phase?”